Getty v. North River Ins. Co.

• Decision Date: 02 June 1939
• Docket Number: 30445.
• Citation: 286 N.W. 271,136 Neb. 369
• Parties: GETTY v. NORTH RIVER INS. CO.
• Court: Nebraska Supreme Court

286 N.W. 271

136 Neb. 369

GETTY v. NORTH RIVER INS. CO.

No. 30445.

Supreme Court of Nebraska.

June 2, 1939

Syllabus by the Court.

1.When the finding of the jury in an action on a fire insurance policy on an issue of fraud by plaintiff's alleged intentional overvaluation of the insured property is against the insurance company on the merits, the question whether the answer states a defense becomes moot.

2.Evidence examined and held sufficient to sustain the verdict of the jury.

Appeal from District Court, Douglas County; Sears, Judge.

Action by Allen Getty against the North River Insurance Company of New York to recover on fire policies.From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

PAINE J., dissenting.

In action on fire policies, trial court properly refused to instruct jury that value of insured's dwelling house was to be determined by its value on the open market and not by the cost of replacement, in view of the fact that, if insured was entitled to recover, the only verdict that could be properly returned was for the face amount of the policies, as provided by the valued policy law.Comp.St.1929, § 44-344.

Wright, Wright & Kennedy, of Omaha, and Stanton & Stanton, of Stromsburg, for appellant.

Fischer Fischer, Fischer & Fischer, of Omaha, and W. T. Thompson, of Lincoln, for appellee.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

CARTER, Justice.

Plaintiff commenced this action to recover on two fire insurance policies issued by the defendant.From a verdict and judgment for $2,700 the defendant appeals.

The evidence discloses that on December 16, 1936, the defendant issued a fire insurance policy in the amount of $2,000 on a one and one-half story cement block veneer dwelling-house located in Stromsburg, Nebraska, which was totally destroyed by fire on January 2, 1937.On July 23, 1936, the defendant insured the house-hold goods in the above described dwelling in the amount of $700.

The defendant admits the issuance of the policies, the payment of the premiums thereon, and total destruction of the property by fire.Defendant alleges as a defense that plaintiff and defendant's agent, John H. Getty, the son of plaintiff, conspired to fraudulently overvalue the house at the time the policy was issued; and that, when the fire started, plaintiff and his son intentionally delayed giving the fire alarm for an unreasonable period of time, which resulted in a complete loss of the dwelling and its contents.

It is the contention of the plaintiff that the valued policy law, Comp.St.1929, sec. 44-344, is a bar to the pleading and proving as a defense that fraud was perpetrated on the insurance company by intentionally overvaluing the dwelling.In support of this contention plaintiff cites the cases of Lancashire Ins. Co. v. Bush,60 Neb. 116, 82 N.W. 313;Fadanelli v. National Security Fire Ins. Co.,113 Neb. 830, 205 N.W. 642;United States Fire Ins. Co. v. Sullivan, 8 Cir.,25 F.2d 40.We do not feel any necessity to discuss this point, or the cases cited in support thereof, in view of the issues submitted to the jury and their findings thereon.

The evidence of the defendant shows that plaintiff purchased the dwelling-house in question about fourteen months before it burned for the sum of $500.There is evidence also that plaintiff made certain repairs and improvements of the approximate value of $150.Plaintiff testifies that the value of the dwelling was $3,000.An agent of another insurance company which had insured the dwelling against fire in the amount of $2,000 testified that he inspected the house and in his opinion it was worth $2,500 to $3,000.This evidence presented a question of fact for the jury, and we find no reason for interfering with their conclusion on this question.

There is evidence on the part of Audrey Jurgens, the housekeeper, that John H. Getty discovered the fire and delayed turning in the fire alarm by driving slowly toward the main part of town.John H. Getty testifies that he tried to turn in an alarm by telephone and found the telephone out of order.He testifies that he drove toward town as fast as weather conditions would permit, but due to wind, snow and poor condition of the road he was unable to drive as fast as usual.There is also evidence in the record on the part of the housekeeper, indicating that John H. Getty was guilty of setting fire to the house.This evidence is disputed by John H. Getty.The verdict of the jury conclusively disposes of these questions of fact.

The defendant complains of the refusal of the trial court to instruct the jury that the value of plaintiff's dwellinghouse was to be determined by its value upon the open market and not by the cost of replacement.The trial court properly refused this instruction.If the plaintiff was entitled to recover, the only verdict that could be properly returned is one for the face amount of the policy as provided by the valued policy law.Comp.St.1929, sec. 44-344.

All questions of fact having been resolved against the defendant by the jury, and there being sufficient evidence to sustain the verdict, the defendant's contention as to the facts is concluded thereby.We have examined all questions of law raised by defendant, and conclude that the record is free from prejudicial error.An attorneys' fee of $100 is allowed plaintiff as costs for the services of his attorneys in this court.

Affirmed.

PAINE Justice (dissenting).

I find myself absolutely unable to agree with the opinion adopted by the majority of the members of the court in this case, and therefore respectfully dissent.

This case is difficult, for it was first argued to the court on November 22, 1938, and a reargument was ordered on March 21, 1939.

It appears to me that the verdict returned by the jury is not supported by the facts in the case, and I will briefly review the evidence.

Action was brought on two policies of fire insurance, viz., $2,000 upon a dwelling, and $700 upon the furniture therein.The jury returned a verdict for the full amount on each policy, and the court taxed attorney's fees of $200.Defendant appeals.

The defense, as set out in the answer, was that the plaintiff conspired with his son, who was the local agent of the defendant company at Stromsburg, Nebraska, to cheat, wrong, and defraud said company, and that said son represented to the company that said dwelling-house was of the value of $3,000, when the value of the same did not exceed $500, which sum the plaintiff had a short time before paid for the real estate; that because of such false representations this defendant was deceived, and did believe the dwelling was of the value of $3,000, as represented; that had the defendant known the real value of the real estate it would not have issued the policy; that the defendant believed said false representations, relied upon them, and because of said fraud said policy never became a valid and binding obligation, and the defendant tenders into court the amount of the premium paid therefor.

It is further alleged in said answer that the plaintiff had knowledge of said fire and needlessly and purposely delayed giving notice or any alarm to the fire department of the city of Stromsburg for an unnecessary length of time, and until said fire had progressed to such an extent that said building could not be saved, thereby causing its total destruction, when a large part thereof could have been saved had prompt notice been given.

The plaintiff identified the policy of the defendant company, which was issued at Stromsburg, Nebraska, under date of December 16, 1936, by his son, J. H. Getty, as agent, and signed by his son.He also identified the policy for $700 upon the household effects.

The evidence discloses that no taxes had been paid upon this real estate since 1927, and that, of the $500 paid by Dr. Getty, the purchaser, over $300 was applied to delinquent taxes, and less than $200 paid to the estate which owned the property.

Upon cross-examination the plaintiff testified that he had purchased the property about a year and two months before it burned, and that it was about 22 years old.He testified that he asked his son to insure the property, as his son was agent for the defendant company; that they talked over the matter and inserted the value of the house at $3,000 in the application, as that was what they thought the building would be worth to build, and plaintiff testified that he asked for insurance in the amount of $2,000.Plaintiff testified that his son lived in the house, and they both ate there, but that he slept at his office; that after he bought the place he repaired the roof in spots, doing some of the work himself, and put in electric lights, and had the house papered and painted.Plaintiff testified that at the time he purchased the house he understood it was being rented for $5 a month.He testified, when recalled to the stand, that on the morning of the fire he did not try to use the telephone from his office before going over to the telephone office to turn in the alarm.

J. H. Getty testified that he was the son of the plaintiff, Allen Getty; that he was in the law and insurance business; that when he wrote the application for his fatherhe placed the actual value upon the premises of $3,000; that it would have cost more than that to replace the house.He sent in the report and application, and the company sent out the policy to be signed and delivered.

He testified that he got out of bed about 4 a. m. to put more wood in the heatingstove, and went back to bed and dozed off, and was awakened by the smell of smoke.

He testified that he first discovered the fire in the dining-room;...